What part of free speech don't U copyright theorists understand?
In a Wall Street Journal Op-Ed yesterday, Evan Coyne Maloney said that it's time for Indiana University to call off the copyright dogs:
Early in November, On The Fence Films received a letter from an attorney representing Indiana University. The letter stated that university was claiming that a portion of the logo used for "Indoctrinate U" looked similar to the university's logo.
From a design and typographical standpoint, there were readily apparent differences between our graphics and the university's logo. There is also no likelihood of consumer confusion because our product is a film whereas theirs is four years in Bloomington. We're in totally different markets.
But in an act of good faith, we voluntarily took the Indoctrinate-U.com site offline while we reviewed our options and decided how to proceed.
Taking down the Web site of a film that we've been working on for four years was painful. We got lots of e-mails from people wondering what was happening, wondering whether some school was trying to shut us down because of the content of our film.
While there's no way to know what the actual motives of IU might be, one of my pet peeves is the use of the copyright and trademark laws to do an end-run around the First Amendment, and thereby accomplish through a perversion of property rights what would never otherwise be tolerated.
Well, I guess it's not the first time in our nation's history that property rights have been abused. There was a time when property rights theory was misused to subordinate human rights (in the form of slavery), so I guess the idea that property rights theory might subvert free speech shouldn't be too surprising.
Uh oh.
Did I just say the word "THEORY"?
Twice?
I guess I'd better be careful using such words. Because, you know, there's a big store for fashion victims bearing that name, and if I really got carried away with the use of the word and, say, put it on a T-shirt, they might sue me.
The above are all forms of parody, and they're supposed to be protected under the First Amendment. But the First Amendment has been rent asunder by the copyright dogs. They know how pull, stretch, and contort their perversions of property rights theory until virtually any hint of an image, any word, even any part of a word, can be seen to state a case for "infringement." If this trend is not stopped, I don't think it's paranoid to envision a wholesale shredding of the First Amendent. In the name of "property." When the New York Times and Michael Savage agree that ridiculing them violates their property rights, all should take notice.
Why, in the case of Evan Coyne Maloney, there are probably a thousand or so second rate schools that could state a legal claim that they used the letter "U" in a logo before he did.
Beware, U Mothers Against Theory, lest U theory be used against U!
Until something is done about this, there will be many examples of such abominable legal overreachings. People (especially large organizations with legal departments) who don't like what someone says need only talk with the lawyers, and it's increasingly likely that they'll be able to find some way to stifle free speech under claim under "property rights theory."
As to the logo which is allegedly infringing in Maloney's case, it simply consists of the letter "I" superimposed over the letter "U" -- in green on a yellow background:
(Maloney has now changed it to avoid litigation, but the misuse of property rights theory as a threat to free speech remains, as noxious as ever.)
Anyway, here is the Indiana University logo, in the form of a fashionable blob thingie U can put on ur chair:
And here's their soccer club, which looks like a paganistic candelabra from outer space:
(I do hope the soccer ball is not copyrighted, but alas. Like most things, U know it probably is.)
Notice the different color scheme, and the fact that the letters are shaped differently. Maloney's are rounded, while Indiana's are squared off and highlighted by black.
Personally, I think both of them infringe on Neptune's Trident....
But the gods have no standing to sue. Otherwise, many companies would be bankrupt. Neptune might have standing to sue Barbados:
Anyway, unless Maloney spends years and hundreds of thousands of dollars on legal "discovery," it will probably never be known why Indiana University decided to pick on an independent blogger and film maker and not Irvine University, which uses the same letters in the same arrangement:
One of the standard boilerplate allegations which are used in these cases is lifted from the legalese "likely to cause confusion" doctrine.
I have to ask:
Isn't it more likely that someone would confuse one real university with another real university than with a film critical of universities?
I also found a nifty "IU Home" logo, which I couldn't help redesigning for them, strictly on an unpaid voluntary basis:
You never know. They might have plans to go into the dairy business, and it always helps to be prepared. (I hope they're grateful for my modest contribution.)
On the serious side, lest anyone think that IU has backed off now that Maloney changed his logo, think again. The IU legal team additionally seeks to bankrupt him:
Unfortunately, the university now seems to want more than just changes to some graphics. The university is now demanding we hand over a sum of money that would essentially bankrupt On The Fence Films.
I have to say, I'm a bit stunned. I understand that some academics might have a problem with our film; it covers academia's dirty little secrets. Nobody likes to be criticized. But Indiana University is not mentioned in the film at all! So their heavy-handedness seems a bit extreme.
Rather than ascribe negative motives to Indiana University, I'd rather assume it's just a matter of ignorance about our film: "Indoctrinate U" hasn't been screened within a six-hour drive of Indiana University, so perhaps their legal team is just unaware of its content. Maybe they're worried that we snuck our cameras onto campus once or twice. If that's the case, then I hope everything can be resolved by my personal assurance to the Trustees of Indiana University: You can breathe easy. Your school isn't in the film. So please--call off the dogs.
To that I'll say "indeed" -- unoriginal though it might be.
But in the broader context of the ever more vicious copyright dogs, I think leash laws are called for. (I don't mean to sound like an unwholesome Folsom guy, but out of control lawyers like these really are in need of discipline, and should be brought to heel.)
Seriously, at the rate things are going, soon we won't be able to say anything.
UPDATE: Tim Maguire makes a good point about the distinction between copyright and trademark law, but I don't see any evidence that Evan Coyne Maloney copied the Indiana University design. He merely superimposed an "I" on a "U."
Some discussion here of trademark law here, including the PETA case, in which a court held that the "People Eating Tasty Animals" website (then named peta.org) violated PETA's trademark rights.
Who will protect the common right to use ordinary words, and to criticize each other's use of them?
posted by Eric on 12.07.07 at 10:04 AM
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Comments
This is an unfortunate consequence of the law itself.
We're dealing here with trademark law, which is primarily concerned with brand identification. Indiana University has trademark rights to the symbol so long as people looking at the symbol think it is associated with Indiana University. If people stop making that association, then IU can lose the trademark. What's more, trademark holders are responsible for policing their own trademark use. If a company doesn't protect its trademark, it can lose it.
That creates an incentive to over-vigilance, organizations often feel they have no choice but to go off on big power grabs and cut others no slack.
It is usually better to sue and risk tarnishing their reputation (a temporary problem) than to not sue and risk losing their trademark (a permanent problem).
tim maguire · December 7, 2007 01:00 PM
I don't think an I placed over a U gives a special claim to anyone. Unless, of course, there was a copy of the same artistic design. Beyond that, though, is the right to engage in parody. (Interestingly, though, Maloney was not doing that to Indiana University, but in any case he did not copy their logo, and there's no way anyone with a brain could confuse his site with that university.)
I agree that IU probably would have lost in court (and definately deserves to lose). I'm just pointing out that trademark law encourages an aggressive "protection" stance and is a major culprit in the resulting chilling effect.
The Anti-Idiotarian Rottweiler
Don?t bang your head!
This is an unfortunate consequence of the law itself.
We're dealing here with trademark law, which is primarily concerned with brand identification. Indiana University has trademark rights to the symbol so long as people looking at the symbol think it is associated with Indiana University. If people stop making that association, then IU can lose the trademark. What's more, trademark holders are responsible for policing their own trademark use. If a company doesn't protect its trademark, it can lose it.
That creates an incentive to over-vigilance, organizations often feel they have no choice but to go off on big power grabs and cut others no slack.
It is usually better to sue and risk tarnishing their reputation (a temporary problem) than to not sue and risk losing their trademark (a permanent problem).